Lusk v Sapwell

Case [2011] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

Lusk & Anor v Sapwell [2011] QCA 59

PARTIES:

ADAM PAUL LUSK and ELIZABETH LUSK trading as CLARITY BY GERBER & LUSK OPTOMETRISTS
(appellant)
v
MICHELLE ELIZABETH SAPWELL
(respondent)

FILE NO/S:

Appeal No 11102 of 2010
SC No 8309 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal be allowed with costs1.    

The judgment at first instance be set aside2.    

Costs orders at first instance be set aside3.    

The respondent pay the appellants’ costs of the proceeding4.    

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where respondent was employed as an optical technician and receptionist in an optometry practice owned and operated by the appellants – where respondent worked alone during daylight hours and would repair spectacles in a backroom obscured from public view – where the backroom was not installed with any “mechanism” to exclude others or to alert the respondent as to the presence of an intruder – where respondent was sexually assaulted by a customer when she was in the backroom repairing his spectacles – where respondent claimed that she had a history of child sexual abuse – where respondent developed post traumatic stress disorder, depression and anxiety following the assault – whether the risk of injury to the respondent was foreseeable – whether respondent’s loss and damage was caused by the appellants

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES– GENERAL PRINCIPLES – PERSONAL INJURY OR DEATH CASES – where appellant submitted that the primary judge erred in assessing quantum by failing to reject the respondent’s evidence where it was not corroborated by reliable evidence – where primary judge calculated future economic loss on the basis that the respondent would be able to work five hours per week – whether the primary judge erred in assessing damages

Coca Cola Amatil (NSW) Pty Ltd v Pareezer(2006) Aust Torts Reports 81-834; [2006] NSWCA 45, considered
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125, cited
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63, cited
Quigley v Commonwealthof Australia (1981) 35 ALR 537, cited
Roads and Traffic Authority v Royal (2008) 245 ALR 653; [2008] HCA 19, cited

Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41, cited
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, considered
Vozza v Tooth & Co Ltd (1964) 112 CLR 316, [1964] HCA 29, cited
Wyong Shire Council v Shirt (1980) 146 CLR 40, [1980] HCA 12, considered

COUNSEL:

M…

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AGLC
Lusk v Sapwell [2011] QCA 59
Case
[2011] QCA 59
Decision Date

CaseChat Overview and Summary

In the case of Lusk v Sapwell, the respondent, who was employed as an optical technician and receptionist at an optometry practice owned and operated by the appellants, was sexually assaulted by a customer while she was working alone in a backroom, repairing spectacles. The backroom was not equipped with any mechanism to exclude others or to alert the respondent of the presence of an intruder. As a result of the assault, the respondent developed post traumatic stress disorder, depression, and anxiety. The central legal issues were whether the risk of injury to the respondent was foreseeable and whether the appellants were responsible for the respondent's loss and damages.

The court found that the risk of an employee being assaulted while working alone in a backroom was foreseeable, but the specific manner in which the assault occurred was not. Regarding the duty of care, the court held that the appellants did not owe a duty of care to the respondent to prevent the assault, as the risk was not reasonably foreseeable. Consequently, the appellants were not liable for the respondent's loss and damages. Additionally, the court found that the primary judge erred in assessing damages, particularly with regard to future economic loss. The primary judge had calculated the future economic loss based on the respondent's ability to work only five hours per week, without adequate evidence to support this limitation.

As a result of the appeal, the court allowed the appeal, set aside the judgment at first instance, and ordered the respondent to pay the appellants' costs of the proceeding. This decision highlights the importance of foreseeability in establishing a duty of care and the necessity for careful assessment of damages in personal injury cases.

Orders

Orders of the court

The appeal be allowed with costs1.

The judgment at first instance be set aside2.

Costs orders at first instance be set aside3.

The respondent pay the appellants’ costs of the proceeding4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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